Citation NR: 9800263
Decision Date: 01/07/98 Archive Date: 01/13/98
DOCKET NO. 95-14 163 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia
THE ISSUES
1. Entitlement to a certificate of eligibility for
assistance in acquiring specially
adapted housing.
2. Entitlement to a certificate of eligibility for financial
assistance in the purchase of an automobile or other
conveyance, and adaptive equipment therefor.
REPRESENTATION
Appellant represented by: Virginia Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
David A. Brenningmeyer, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 25, 1941, to
September 19, 1945, from February 26, 1951 to January 12,
1955, and from January 25, 1955, to January 11, 1961. This
matter comes to the Board of Veterans’ Appeals (Board) on
appeal from a November 1993 decision by the RO that denied
the veteran’s claim of entitlement to a certificate of
eligibility for financial assistance in the purchase of an
automobile or other conveyance, and adaptive equipment
therefor, and from a June 1995 decision that denied a claim
of entitlement to a certificate of eligibility for assistance
in acquiring specially adapted housing or a special home
adaptation grant.
In light of the order of the Board set forth below granting a
certificate of eligibility for assistance in acquiring
specially adapted housing under 38 U.S.C.A. § 2101(a) (West
1991), further consideration of entitlement to a certificate
of eligibility for assistance in acquiring special home
adaptations under 38 U.S.C.A. § 2101(b) (West 1991) is not
required. This is so because a certificate under § 2101(b)
may not be issued if the veteran is entitled under § 2101(a).
38 C.F.R. § 3.809a (1996).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to the benefits
sought on appeal because his service-connected disabilities
have resulted in loss of use of his lower extremities. He
maintains that he can ambulate only a few feet at a time on
his own, and that he requires a wheelchair for normal
locomotion.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports his
claim of entitlement to certificates of eligibility for
assistance in acquiring specially adapted housing and for
financial assistance in the purchase of an automobile or
other conveyance and adaptive equipment therefor.
FINDINGS OF FACT
1. The veteran is rated permanently and totally disabled due
to service-connected Parkinsonian syndrome and chronic brain
syndrome with basilar artery thrombosis.
2. The veteran’s Parkinsonian syndrome and chronic brain
syndrome result in impairment of function, especially in
terms of ambulation, which is essentially equivalent to loss
of use of his lower extremities.
CONCLUSIONS OF LAW
1. The legal criteria for entitlement to a certificate of
eligibility for assistance in acquiring specially adapted
housing have been met. 38 U.S.C.A. §§ 2101, 5107 (West
1991); 38 C.F.R. §§ 3.350, 3.809, 4.3, 4.63 (1996).
2. The legal criteria for entitlement to a certificate of
eligibility for financial assistance in the purchase of an
automobile or other conveyance, and adaptive equipment
therefor, have been met. 38 U.S.C.A. §§ 3901, 3902, 5107
(West 1997 & Supp. 1997); 38 C.F.R. § 3.350, 3.808, 4.3, 4.63
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran is rated permanently and totally disabled due to
service-connected Parkinsonian syndrome and chronic brain
syndrome with basilar artery thrombosis. He contends that
these disabilities have worsened to the extent that he has
lost the use of his lower extremities. Recent medical
evidence of record shows that he uses a wheelchair and has
significant difficulty ambulating on his own. Under these
circumstances, the Board finds that his claims of entitlement
to certificates of eligibility for assistance in acquiring
specially adapted housing and for financial assistance in the
purchase of an automobile or other conveyance, and adaptive
equipment therefor, are well grounded. See 38 U.S.C.A.
§§ 2101(a), 3901(1), 5107 (West 1991); 38 C.F.R. §§ 3.808,
3.809 (1996); Proscelle v. Derwinski, 2 Vet.App. 629 (1992);
Littke v. Derwinski, 1 Vet.App. 90 (1990). He has been
examined and the relevant evidence has been properly
developed. Consequently, no further assistance is required
to comply with the duty to assist. 38 C.F.R. § 3.159 (1996).
Under VA law, assistance may be provided to a veteran “in
acquiring a suitable housing unit with special fixtures or
movable facilities made necessary by the nature of the
veteran’s disability, and necessary land therefor.”
38 U.S.C.A. § 2101(a) (West 1991). However, such assistance
may be provided only in instances where the veteran is
entitled to compensation for a permanent and total service-
connected disability:
(1) due to the loss, or loss of use, of both
lower extremities, such as to preclude
locomotion without the aid of braces,
crutches, canes, or a wheelchair, or
(2) which includes (A) blindness in both
eyes, having only light perception, plus (B)
loss or loss of use of one lower extremity,
or
(3) due to the loss or loss of use of one
lower extremity together with (A) residuals
of organic disease or injury, or (B) the loss
or loss of use of one lower extremity, which
so affect the functions of balance or
propulsion as to preclude locomotion without
the aid of braces, crutches, canes, or a
wheelchair.
Id. 38 C.F.R. § 3.809 (b) (1996) (same). Under the
applicable regulations, locomotion is deemed “precluded”
where there is a necessity for regular and constant use of a
wheelchair, braces, crutches, or canes as a normal mode of
locomotion, even though occasional locomotion by other
methods may be possible. 38 C.F.R. § 3.809(d) (1996).
VA may also provide, or assist in providing, an “eligible
person” with an automobile or other conveyance, and necessary
adaptive equipment therefor. 38 U.S.C.A. § 3902(a), (b)
(West 1991 & Supp. 1997). A veteran is considered an
“eligible person” if he is entitled to compensation for any
of the disabilities described below, and if such disability
is the result of an injury incurred or disease contracted in
or aggravated by active military, naval, or air service:
(i) The loss or permanent loss of use of one
or both feet;
(ii) The loss or permanent loss of use of
one or both hands;
(iii) The permanent impairment of vision of
both eyes of the following status: central
visual acuity of 20/200 or less in the better
eye, with corrective glasses, or central
visual acuity of more than 20/200 if there is
a field defect in which the peripheral field
has contracted to such an extent that the
widest diameter of visual field subtends an
angular distance no greater than twenty
degrees in the better eye[.]
38 U.S.C.A. § 3901(1) (West 1991); 38 C.F.R. § 3.808(b)(1)
(1996) (same). A veteran who does not qualify as an
“eligible person” under the foregoing criteria may
nevertheless be entitled to adaptive equipment if he is
entitled to VA compensation for ankylosis of one or both
knees, or one or both hips, and adaptive equipment is deemed
necessary for the veteran’s licensure and safe operation of a
vehicle. 38 U.S.C.A. § 3902(b)(2) (West Supp. 1997);
38 C.F.R. § 3.808(b)(1)(iv) (1996).
In the present case, the Board finds that the veteran’s
service-connected Parkinsonian syndrome and chronic brain
syndrome result in impairment of function, especially in
terms of ambulation, which is essentially equivalent to loss
of use of his lower extremities. A letter from the veteran’s
private physician, Dr. Patteson, dated in January 1994, shows
that the veteran has experienced a progression of weakness
and ataxia associated with service-connected disability,
including cogwheeling and bradykinesia. When he was examined
by VA for aid and attendance purposes in September 1994, the
examining physician indicated that the veteran was confined
to a wheelchair and could not stand. It was reported that he
could walk approximately ten yards with a great deal of
difficulty, but that he used an electric wheelchair as his
normal mode of ambulation. The report of a subsequent VA
neurological examination, dated in October 1994, shows that
his gait was very slow and shuffling with festination, and
that he had a marked loss of postural reflexes that
interfered with his ability to arise from a seated position.
Although the objective findings made by the examiners in this
case have not been provided with such specificity that it is
clear that the veteran has loss of use of his lower
extremities as defined by regulation, see 38 C.F.R. § 3.350,
4.63 (1996), the clinical descriptions provided by the
examiners regarding the veteran’s ability to ambulate
collectively reflect that he requires a wheelchair or other
assistance as part of his normal mode of locomotion. Given
the available clinical findings and the progressive nature of
the veteran’s debility, the Board finds both credible and
persuasive more recent statements in the file from the
veteran and his representative to the effect that the veteran
is functionally confined to a wheelchair and unable to walk
even short distances without the aid of a walker. As a
practical matter, therefore, the Board is satisfied that he
has lost the use of his lower extremities. The evidence, at
a minimum, gives rise to reasonable doubt on the question.
38 C.F.R. § 4.3 (1997). Hence, the Board will grant his
claims of entitlement to certificates of eligibility for
assistance in acquiring specially adapted housing and for
financial assistance in the purchase of an automobile or
other conveyance and adaptive equipment therefor pursuant to
38 U.S.C.A. §§ 2101(a)(1) and 3901(1)(A)(i) (West 1991).
ORDER
The veteran’s claim of entitlement to a certificate of
eligibility for assistance in acquiring specially adapted
housing is granted.
The veteran’s claim of entitlement to a certificate of
eligibility for financial assistance in the purchase of an
automobile or other conveyance, and adaptive equipment
therefor, is also granted.
MARK F. HALSEY
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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